Where child of two years old was walking on the track of a railroad as the train backed towards it, and no one on the train saw the child till after the accident, but if some one on the train had been on the look-out, the accident might have been avoided, the company is liable in damages for running over the child, 317. Joint user by two railway companies of station property of one; negligence of fellow servant, 355. Duty of company toward domestic animals on track of railroad through fault of owner, 374.
Speed of train and defects in track as evidence of negli gence, 377.
Want of care in manufacture of cars, 377.
Not liable for frightening animals by locomotives, even if they kill themselves in consequence, 416. Driver of street car is not bound to regulate his speed at such a rate as may be necessary to avoid harm to per- sons crossing the road in an unreasonable and im- proper manner. It is as much the duty of persons crossing the street to look out for vehicles, as it is of the driver to look out for those crossing the road. Meyer v. Lindell R. R., 425.
Passenger injured through negligence of, may sue upon the contract or in tort, 436.
In causing fires, only liable for negligence, 498. NEGOTIABLE AND ASSIGNABLE PAPER.
Promissory note made payable to a particular person or order, and first endorsed by third party; circumstances under which such third party will be held to be an orig. inal promisor, guarantor, or indorser, respectively, 54. Where endorsement is made in blank by a stranger be. fore delivery, he is prima facie liable as maker or guar- antor, 55.
Where one is held as promisor or second indorser, it is not necessary to allege or prove any other than the original consideration; but if it is intended to hold him as guarantor, a distinct consideration must appear, 55. Purchase of promissory note by national bank for pur- pose of speculatlon ultra vires, 56.
Note signed "St. Louis Marble Co., by James Givens, pres't, James Givens, I. V. W. Dutcher," is not prima facie a joint undertaking. Givens v. Merchants Nat. Bank, 65.
Knowledge of fact that note is past maturity, and no pre- sentment has been made or notice given to indorsers, requisite in order to make good a waiver of such fact by a promise of an indorser to pay the note, Givens v. Merchants National Bank, 65.
Non-residence of parties when cause of action accrued and suit was brought, not a good plea in abatement in suit on promissory note by endorsee against endorser,
Warehouse receipts are negotiable and transferable by endorsement in blank. Cochran v. Rippy, 88. Party writing his name on back of note of which he is neither payee nor endorser, is treated as a maker, 134. Innocent purchaser of note entitled to recover its full value from maker, 155, 209.
Note in hands of bona fide holder not affected by separate written agreement, 175.
Promissory note; rights of sureties, 176.
Promissory note; indorsers; contribution, 176.
Slight failure of consideration no defense to suit on promissory note, 196.
Municipal bonds payable to bearer are negotiable instru- ments, and subject to the same rules as other negoti- able paper. Cromwell v. County of Sac, 209. Note payable in merchandise not negotiable, 253. Mere signature of drawee's name on bill of exchange not sufficient acceptance under English statute, 433. Effect of a subsequent endorsement by an endorsee to his endorser. Howe Machine Co. v. Hadden, 446. Several promissory notes were executed by one H to G, who assigned the same by indorsement to F. Fafter- wards assigned them by indorsement to G, who as- signed them to plaintiff. Held, that F's liability as be- tween himself and G being extinguished, the plaintiff, as G's indorsee, could not recover of F. Ibid. Where a banker makes use of the public mail in forward- ing a note for collection, and, through interference or neglect, the letter containing the note is not deliv. ered to the receiving bank, it does not excuse the en- dorser, though the interference was caused by the postmaster's knowledge that thereceiving bank had failed, and the postmaster believed he was doing_the forwarding bank a favor by returning the letter. Pier v. Heinrichshofen, 285.
Alteration of note from payable "to order" to "to bearer" material, 318.
Note altered by trespasser valid as originally written, 318.
Effect of endorsement of note before delivery, 356.
NEGOTIABLE AND ASSIGNABLE PAPER- Continued. Memorandum on note "25,000 F. & L. R. R. bonds as colla- teral" not notice to plaintiff of agreement between prin- cipal and surety that he would pledge the bonds named as security for the note, 356.
When days of grace are not allowed upon a negotiable promissory note (as in Alabama in some cases), the day of maturity is the only proper day for presentment and demand in order to charge indorsers, 478.
Where the maker of a negotiable note is dead, note should be presented at maturity to his administrator, 499.
Have receivers' certificates all the attributes of, Query, 359, answer, 399.
NOLLE PROSEQUI.
[See CRIMINAL LAW AND PROCEDURE.] NOTARY.
Meaning of" mailed" in notary's certificate. 285. NOTICE.
[See also MUNICIPAL BONDS; NEGOTIABLE AND AS- SIGNABLE PAPER.]
Purchaser who examined a house and lot before making the purchase, and who found an alley way open and in use, presumed to have notice of the reservation of the use of the alley way in the conveyance to his vendor. Burton v. Shotwell, 31.
Person renting house to be used as a bawdy house or al- lowing it to be so used, liable for damages caused to adjoining owners by depreciation of property. Givens v. Van Studdiford, 6.
Failure of railroad companies to give signals at cross- ings an indictable, L, & N. R. R. Co. v. Čom., 86. English act authorizing a railway company to construct and work their line does not authorize them to commit acts which would, in the case of a private individual, constitute a nuisance, 95.
Construction of Massachusetts statute as to bawdy houses,115; of Missouri statute, 317.
One, who by an artificial erection on his own land, causes water, even though only arising from natural rain-fall, to pass into his neighbor's land, is liable to an action Hurdman v. N. at the suit of the person so injured. E. R. R., 367.
OBSCENE PUBLICATIONS.
In prosecution for, words constituting the offense must be set out in the indictment; the Bradlaugh case, 202. The postal law as to obscene publications construed, 300; comments on, 339.
On indictment for, defendant cannot plead that the pub- lic had abandoned the easement by non-user, unless such non-user had continued for twenty years, 96. OFFER.
An offer to sell by a written proposition may be with- drawn at any time before it is fully accepted by all those to whom it is made, 31.
Erasure by one of several acceptors of his name without consent of others does not affect the contract, 31.
OFFICES AND OFFICERS.
County auditor's fees in Indiana, 117.
Liability of sheriff for neglect in selling land at judicial sale, 115.
The law as to peculation by public officers and their subordinates, 180.
The conclusiveness of official returns, 201, 278. Contradicting sheriff's return can only be done in direct proceeding against sheriff, 216.
Action against sheriff for negligence in permitting alter- ation of process, 217.
Domestic judgments; impeachment of service of sum. mons and officer's return. Mastin v. Duncan, 328. Actions against officers of election, 340.
Responsibility of clerk of court for approval of stay bond, 375.
Fees of clerks of court in Missouri under constitution of 1865, 397.
County in Iowa not liable under sec. 536 of Code for ser- vice of city marshal, 415.
Duty of Master in Chancery in reporting evidence to court, 435.
Annual reports of the coroner of the city of Chicago, 440. OFFICIAL BONDS.
Construction of constable's bond, 18.
Action on official bond of coal oil inspector for damages caused by explosion of coal oil lamp, 57.
Action on collector's bond against himself and sureties; quietus; settlements between county court and col- fector not judgments, 177.
OFFICIAL BONDS-Continued.
If a sheriff levies an execution during his first term of office, and sells or collects the money during his sec- ond term, the liability is upon his first bond; rule dif. ferent in case of master in chancery. McLain v. Peo- ple, 227.
OPTION CONTRACTS.
[See CONTRACTS.] PARDONS.,
Under Ohio act (S. & C. 850), the commutation of the punishment of a lunatic convict is valid, and takes ef- fect regardless of the convict's rejection of it when re- stored to reason, 78.
Construction of the words "for the time being," in said act. Ibid.
Executive may annex to a pardon any condition, prece- dent or subsequent, provided it be not illegal, immoral or impossible of performance. Arthur v. Craig, 424. Where a pardon contained a condition that the governor might revoke it, under certain circumstances, upon such showing as might be satisfactory to him, and was accepted by the prisoner on such terms: Held, that the latter had no right to a judicial determination of the question of forfeiture in the face of this condition. Ibid.
PARENT AND CHILD.
[See INFANCY.]
PARTIES.
[See PLEADING AND PRACTICE.]
Vendee of one fourth interest in tract of land may par tition with owners, notwithstanding vendor retained a lien for the purchase money on such one-fourth inter- est, 77.
Proceedings in partition against minor defendants not served with process are void, and could not be cured by proceedings under act of Nov. 21, 1857 (Mo.), 499. PARTNERSHIP.
Power of partner over real estate of firm, 18. Limitation to rule that no action can be maintained by one partner against the other for any cause growing out of the partnership relation, or which requires an accounting to ascertain the respective rights and lia- bilities of the parties, 42.
Authority of partner to bind the firm for an individual debt, 56.
Effect of dissolution of partnership on contract for ex- clusive sale by firm of certain articles for a term of years, 97.
Note signed in individual names of partners held a firm liability. Re Thomas & Sivyer, 151.
Division of profits held not to constitute, 155. Dissolution of; rights of parties, 293.
Landlord agreeing with B that latter should farm his land and each should defray half the expenses and have half the profits, does not constitute a, 316.
Partner cannot apply claim of firm to payment of indi- vidual debt, even to retain for firm debtor's custom, 318. Where parties have agreed to refer disputes to foreign tribunal, court will prevent suit when, 355. Authority of one partner to bind firm, 361.
Effect of release of one partner upon right of action against the other, 374.
Children succeeding to interest of deceased partner; acceptance, 396.
Specific performance of partnership contract refused after death of partner, 397.
Debt to partnership; payment of partners individual debt, 415.
Right of one partner to share in the profits made by another partner in another business carried on in con- travention of the partnership articles is confined to three cases, viz.: where the profits have arisen (1) by use of the partnership property; (2) from a business in rivalry with the partnership; (3) in a transaction car- ried on by taking an unfair advantage of his connection with the partnership. Dean v. McDowell, 469. Without this the partners are in the simple position of covenantor and covenantee, and the only remedy is by injunction or dissolution, or, after the termination of the partnership, by action of damages. Dicta, in Story and other text books overruled. Ibid.
Motion to vacate decree in patent case for collusion; rights of third parties. Cochrane v. Deener, 26. Specification of a patent for an improvement of a ma- chine which consists of various subordinate combina- tions, must distinctly show for what particular part of the whole combination the patent is granted, 96.
PATENT LAW-Continued.
Licensee of patent estopped from denying licensors title, its novelty or utility and the sufficiency of the specification, 96.
But he may show that articles manufactured by him were not covered by the patent, 96.
Pennsylvania statute requiring notes given for a patent right to show on their face that they were so given, constitutional, 241.
The distinction between invention and mechanical skill; article by O. F. Bump, Esq., 323.
Notes given for patent rights and state legislation affecting them; article by Wm. Ritchie, Esq., 373. PERJURY.
Requisites of indictment for, committed before gran d jury, 16.
"Material matter," in Mo. criminal code, 16.
In trial for, evidence that the prisoner was grossly in- toxicated at the time, admissible, 78.
[See PLEADING AND PRACTICE.] PHYSICIAN.
May be called on to testify as an expert without being paid for his testimony as for a professional opinion; refusal to testify a contempt, 11.
Ruling of the Indiana court to the contrary effect. Bu- chman v. State, 231.
Degree of skill and care required of physicians and surgeons, 439.
PLEADING AND PRACTICE.
[See also APPEALS AND APPELLATE PROCEDURE; CRIMINAL LAW AND PROCEDURE.]
Power of courts to order entres nunc pro tunc, 38. Court at subsequent term may correct record by incor- porating into it nunc pro tunc a special finding of the facts upon which the judgment was rendered, 76. Of pleadings on trial, 118.
After partial recovery, by adding defendants, not allow- able, 294,
Where evidence has been erroneously received, court may direct jury to disregard it, 17.
Answer of judge to question from juror not error, be- cause not reduced to writing as an instruction, 18.
In trial of action for assault and battery where defend- ant justifies on the ground of self-defense, plaintiff has right to begin and reply, 39.
In action for personal injury, where the extent of the injury is in dispute, the defendant is entitled on motion at the trial to an order of court for the physical exam. ination of plaintiff by physicians. Schroeder v. Ch. R. I. & Pac. R. R., 47.
Duty of juror to obey directions of judge in returning verdict, 276.
Court may admit evidence of attempt to tamper with witness before it is shown that prisoner was connected with it, 293.
Counsel in argument traveling outside of case, and as- serting to be facts what are not in evidence may be punished personally, or verdict set aside, 296. Continuance.
Of cause, a matter of judicial discretion, 118. Costs.
Right to have witness fees taxed where evidence of parties had been previously taken by depositions, 82. Taxation of witness fees in federal courts where sub- pœna not served by marshal, 83.
Judgment in favor of party for costs, as much his prop erty and under his control as judgment for debt sued on, 336.
After offer to confess judgment, 376. Declaration-Petition.
Requisite of petition in suit on promissory note by party. other than payee, under Ohio code, 58.
Sum necessary to give jurisdiction must be ascertained from petition, 115.
Petition avering that two were administrators and that letters of one had been revoked and plaintiff ap- pointed in his place bad, 115.
In action on account, it must be set out in petition, 396. In action for relief on ground of fraud, circumstances under which fraud was discovered need not be alleged, (Kas.), 437.
Non-residence of parties when cause of action accrued and suit was brought, not a good plea in abatement to suit on promissory note by endorsee against en- dorser. Givens v. Merchants' Ñational Bank, 65.
PLEADING AND PRACTICE-Continued.
In action on appeal bond, where affidavit of claim is filed, defendant must file affidavit of merits, 116. Joint defendants; default by some and pleas by others; judgment against part, 136.
In suit on promissory note general denial puts owner- ship of note in issue, 155.
Plea of general issue waives question of jurisdiction, 347. Where complaint shows cause of action due, that it is not so may be shown by plea in abatement, 398. Requisites of affidavit of defense, 434. Demurrer.
When plea of general issue is filed, demurrer to subse- quent plea can not be carried back to the declaration, 117.
Whether, where it appears from the complaint that the statute of limitations has run upon the cause of action, the defendant can avail himself of the statute by de- murring to the complaint for insufficiency of the facts, discussed, 297.
The act of congress of June, 1872 (Rev. Stat, §514), does not apply to the manner of taking depositions to be used in the federal courts. Sage v. Tauszky, 7.
Equity. Equity has no power to interfere with the rights of par- ties, in invitum by an order directing the consolidation of independent suits. Knight Bros. v. Ogden Bros., 27. Persons claiming title adversely to mortgagor not proper parties to foreclosure suit, 354.
All persons beneficially interested, either in the estate mortgaged, or the demand secured, are proper parties, Ibid.
Administrator not proper party to bill to set aside volun- tary conveyance of intestate, 375.
Where a jury of twelve men was selected and summoned for the trial of a cause before a justice of the peace, under the act of March 50, 1875, (72 Ohio Laws, 159), and before the day set for trial this act was repealed by an- other (73 Ohio Laws, 14), which provided for a jury of six men for such trials: Held, that the act in force at the time of the trial governed, 118.
Objections as to competency of jurors may be waived, how, 136.
Fact that person has expressed opinion no objection to his sitting as a juror where opinion was founded on mere rumor, 136.
That juror drank intoxicating liquors during trial not ground for new trial, 255.
Case altered if liquor furnished by attorney to influence juror. Ibid.
Party not entitled to jury on application for judgment for delinquent taxes, 277.
That party has subscribed funds for suppressing crime, does not disqualify him for grand juror, 277.
A juror was challenged for cause, and the objection overruled by the court. He was then challenged per- emptorily, and the jury accepted without the defend. ant having exhausted his peremptory challenge. Held, no error. Small v. C. R. I. & Pac. R. R., 310. Party not entitled to, where only issue is as to costs, 397. Resident and tax-payer incompetent, where city is sued for $10,000 damages, 448.
That juror sat on a former trial a ground for challenge, 438.
Mode of empanneling (Kas.), 437.
Miscellaneous Rulings.
Indiana stalute (2 R. S. 1876, 277), that in any action on contract, against two or more defendants, "the surety may, upon a written complaint to the court, cause the question of suretyship to be tried and determined, upon the issue made by the parties, at the trial of the cause, or at any time before or after the trial, or at a subsequent term, construed," 117.
Requisites of petition for change of venue in Illinois, 117.
Refusal of court to discharge on ground of mistake of fact an order entered by consent, 114.
The computation of time, 141.
Default taken through absence of counsel; error, 196. On application to stay execution verified petition not necessary, 337.
Venue in action for damages for causing death (Ohio), 436.
Use of initials instead of full name, 478.
Where A executes notes to B in payment of real estate, and afterwards sells such real estate to C. who assumes and agrees to pay said notes, B can maintain a suit against C for the payment of the notes, 38.
PLEADING AND PRACTICE-Continued.
Petition of widow for assignment of dower against par- chaser of part of estate, and heirs of deceased, 57. Security for costs will not obviate necessity of ner friend in suit by infant, 358.
No waiver of fraud in procuring service of process, by fil- ing petition for removal to federal court. Moynahan v. Wilson, 29.
When a defendant is brought within jurisdiction of the court by a trick, service of process will be set aside, Exemption from civil process or arrest of witness before legislative committee, 58.
Service of process by publication under Oregon statute, 142.
Service of process upon sick person, 176. Evidence of service of, 296.
Service of, by mail, |(Wis.) 318. Reference.
In Wisconsin must be by order of court, 18.
Oral consent to, must be entered on court minutes, 18. Referee must make final report on whole case, 175. That case was begun before justice of the peace no ground for refusing, 434.
Set-off and Counterclaim.
Right of set-off in an action is governed by the law of the place where the action is brought, 39.
Set-off by principal in suit against principal and surety. Himrod v. Baugh, 87.
Requisites of set-off under Indiana code, 175.
A sued B and C for a balance of account due A; at the same time A, together with his partner D, owed de- fendants on another account; they pleaded this ac- count due by A and D as a set-off to the account due by B and C to A. Held, that the set-off was well pleaded, 293.
Effect of judgment upon counterclaim, 397.
In a suit by an administrator or executor in a justice court, can a debt existing against his testator or intes- tate belonging to defendant at the time of his death be set-off by the defendant and judgment rendered in his favor for the excess? Query, 279; Answer, 299, 319. Supplementary Proceedings.
Written answer of bank verified by oath of president not competent, in a proceeding supplementary to execu- tion, to show that bank had funds of the defendant on deposit, 97.
The act of Congress of June, 1872, (Rev. Stat. 914) re- quiring the practice in the U. S. Courts to conform to that in the State Courts does not apply to the manner of taking depositions to be used in the federal courts. Sage v. Tauszkey, 7.
Sec. 914 of the Revised Statutes, adopting the practice, pleadings, and forms and modes of proceeding, applies to such as are established by the statutes of the sev- eral states, and does not include modes of procedure established by judicial construction of common law remedies. Sanford v. Town of Portsmouth, 147. Decisions of the supreme court of a state that manda- mus is the only proper remedy upon municipal bonds, are not binding upon the federal courts, Ibid. Whether sec. 914 extends to the practice prescribed by rules of the state court of general application, quære. Ibid.
Extent of judgment in the districts of the, 261. Resolution of a foreign corporation, filed pursuant to a state statute, authorizing its agent "to acknowledge service of process," &c., amounts to an agreement for a constructive presence within such state; and a fed- eral court may obtain jurisdiction over such corpora- tion by service upon its agent. Fonda v. British Am. Ass. Co., 305; another case, 442.
The lien of judgments of federal courts, 401. Validity of judgments of federal, in state, courts, 414. PLEDGE.
Possession, actual or constructive, by the pledgee requi- site to a valid, 18.
Construction of the, as to prohibited literature and ad- vertisements, 461, 300, 339.
PRESUMPTION.
[See EVIDENCE.]
PRINCIPAL AND AGENT.
[See AGENCY.]
PRIVATE INTERNATIONAL LAW.
Right of set-off in action is governed by the law of the place where the action is brought, 39.
PRIVATE INTERNATIONAL LAW-Continued. Rule that a contract shall be judged by the law of the place in which it is made is not applicable to real estate, which can be conveyed only according to the law of the place in which it is situated. North West. Mut. Life Ins. Co. v. Overholt, 188.
In an administration by the court of the assets of a tes- tator who had a foreign domicil at the time of his death, although the property will be distributed accord- ing to the law of the place of domicil, the payment of interest will be governed by the practice of the court here, 275.
In suit on promissory note, contract governed by law of place where payable, 434.
Conflict of laws; rights and remedies, how governed, 440. Extra territorial force of statutes. State v. Bunce, with note, 465.
Appointment of receiver in another state recognised as against attaching creditor who is citizen of the same state, 476.
Would the courts of Indiana give an assignee of a debt a right to collect said debt where the debt arose between citizens of a sister state, and where as between said citizens the debt could not be collected by the remedy sought to be enforced in the home court? Query, 179; answers, 238, 258.
PRIVILEGED COMMUNICATIONS.
[See EVIDENCE.]
PROBATE COURTS.
[See JURISDICTION.]
PROCESS.
[See PLEADING AND PRACTICE.]
PROFESSIONAL ETHICS.
Memorial of the judges of the superior court of Phila- delphia asking to be relieved from the duty imposed upon them by law, of making appointments to various city offices, 61.
Should a relative of a judge be debarred from practicing in his court? 140.
The disbarment of Mr. F. J. Bowman, 220.
When should a change of venue be asked on ground of judge's bias? Query, 319; answer, 319.
PROMISSORY NOTES.
[See NEGOTIABLE AND ASSIGNABLE PAPER.]
Where 30 days advertisement of foreclosure is required by trust deed, sale good if more than 30 days elapsed between first and last publication, 415.
PUBLIC POLICY.
[See CONTRACTS.]
QUERIES AND ANSWERS.
What redress has one who has been convicted and served his sentence under a statute afterward declared uncon- stitutional? Query, 159; answers, 159, 220, 259, 279. Would the courts of Indiana give an assignee of a debt a right to collect said debt, where the debt arose be- tween citizens of a sister state, and where as between said citizens the debt could not be collected by the remedy sought to be enforced in the home court? Query, 179; answers, 238, 258.
Entry on land; when is a patent said to be issued? Query, 238; answers, 279, 299, 338.
Who has priority-the assignee of a judgment or the holder of a prior unrecorded deed or mortgage? Query, 238; answer, 279.
In a suit by an administrator or executor in a justice court, can a debt existing against his intestate or testa- tor, and belonging to the defendant at the time of his death, be set-off by the defendant and judgment rend- ered in his favor for the excess. Query, 279; answers, 299, 319.
Wanted, a well-considered case, holding that the assig- nee of a chose in action can only recover what he paid. Query, 278; answers, 319, 338.
Patent for land issued after death of party to heirs, what sort of a title has a purchaser at an administrator's sale? Query, 298; answers, 339, 399.
When should a change of venue be asked on account of alleged bias of judge? Query, 319; answer, 319. Have receivers' certificates all the attributes of negotiable paper? Query, 359; answer, 399.
Does the Illinois statute in regard to exemptions, in force July 1, 1877, repeal sec. 14 of the garnishment act? Query, 439; answer, 479.
Not allowed for breach of municipal agreement, 176. Information in the nature of, is the proper remedy where a company or corporation exercises a franchise not granted, 491.
[See also CARRIERS; CONSTITUTIONAL LAW; DAMAGES; NEGLIGENCE; TRESPASS.]
Wrongful ejection from car; punitory damages against company, 21.
The Liability of Railroad Companies in Missouri for Kill- ing Stock. Articles by Hon. H. S. Kelly, 23, 43. Not bound to receive person as passenger who is drunk to such a degree as to be disgusting and offensive, 38. But slight intoxication is not sufficient ground for refus- ing one a passage in a public car. Ibid. Transporting animals, excused from liability for loss of such animals only as is caused by the inherent tenden- cies or qualities of the animals, 56.
Failure to give signals at crossings an indictable nuis- ance. L. & N. R. R. Co. v. Com., 86.
Action will not lie against railroad for cost of building fence, where former owner of land had agreed to keep it up, 118.
Erection of telegraph line on right of way of railroad, 157.
The law of the smoking-car, 160.
Use of thoroughfare for railroad track; right of adjoin- ing owner to damages, 176.
Contract between railroad and ferry company construed,
Liability of, for passengers baggage, 222.
Taking luggage from car and depositing it on platform does not constitute delivery to passenger, 275.
Duty of conductor to eject drunken and unruly passen. ger from train; expulsion not proximate cause of death if he be afterwards run over by another train,
Power of railroad to make contract for transportation over connecting line. O. & M. R. K. v. McCarty, 287. Liability of railroad to passenger in Pullman car, 321. Construction of Pennsylvania statute as to right of colored persons on railroads, 381.
Engines, cars and rolling stock of a railroad are chat- tels, 381.
Railroad ticket with words "Portland to Boston" does not entitle holder to passage from Boston to Portland, 382.
Powers of conductors of trains to make agreements with passengers varying printed notice of company. O. & M. R. R. v. Hatton, 389.
Liable to garnishment (Ohio), 436.
The by-laws of railroad companies, 480. RAPE.
A curious case in North Carolina, 100.
Party may be acquitted of rape and convicted of assault and battery, 155.
Conviction may be had for assault and battery though woman consent, when, 155.
Solicitations without violence do not constitute, 475. RECEIVER.
Appointment by one court in no way affects the ordi- nary jurisdiction of other tribunals, 59.
Foreign Receivers. Article by G. F. Henry, Esq., 123, A citizen of the state of Massachusetts, appointed a re- ceiver of an Ohio corporation by the United States Circuit Court in the latter state, may maintain an ac- tion in said court for the recovery of assets of such corporation wrongfully withheld, 195.
Can not be sued without leave of appointing court, 201. Have receivers certificates all the attributes of negotia- ble instruments? Query 359; answer, 399. RECORDS.
[See JUDGMENTS AND DECREES.]
REGISTRATION LAWS-Continued.
Effect of recording unauthorized instrument; construct- ive notice, 296.
Meaning of "filed" in Minnesota statute, 475.
Who has priority under the,-the assignee of a judgment, or the holder of a prior unrecorded deed. Query, 238; answer, 279.
Where the first wife of the plaintiff was a sister of the father of the justice before whom the case was tried, but was dead when the action was brought: Held, that the justice was not related to the plaintiff either by blood or marriage. 38.
By affinity ceases with the dissolution of the marriage which created it 38.
RELEVANCY.
[See EVIDENCE.]
RELIGIOUS CORPORATION.
[See TRUSTS AND TRUSTEES.]
REMOVAL OF CAUSES.
Filing in a state court a petition for removal is no waiver of fraud in procuring service of process. Moynahan v. Wilson, 28.
Where property was fraudulently decoyed within the ju risdiction of a state court, and seized upon a writ of replevin, and defendant at once removed the case to the federal court, and moved to set aside service of the writ: Held, that the motion was not too late, 28. Petition under act of 1789 must expressly state that the parties were citizens of the respective states at the time the suit was commenced, 76.
State court not bound to surrender its jurisdiction, unless petition on its face shows the right of the petitioner to transfer it, 76.
Under act of 1867, the petition for removal must state the personal citizenship of the parties, and not their offi- cial citizenship, 76.
Removal of causes under the civil rights law; the Louisi- ana Returning Board Case, 121.
After improper overruling of motion in state court, party is not prejudiced by remaining in that court, 376. Right to removal may be waived, how, 398. Where D, a citizen of California, filed a bill to foreclose a mortgage against M, the mortgagor, also a citizen of California, and F, a subsequent incumbrancer and a citizen of New York, there can be no final determina- tion of the controversy between D & F without the presence of M, and the suit is not removable by F to the Vircuit Court of the United States under sec. 639, Rev. Stats., 457.
Neither in such case, where the only controversy is as to the mortgage, is there "a controversy which is wholly between citizens of different states," or "which can be fully determined as between them," within the meaning of sec. 2 of the Act of March 3, 1875, (18 Stat. 470), Ibid.
Married woman may maintain, for property purchased by her from her husband, 17.
Constable levying under an execution against A, upon property of B; latter may bring replevin without de- mand, when, 17.
After delivery of goods to consignee, lien is lost and car- rier can not maintain replevin, although conditions precedent to delivery had not been complied with, 113. Can not be maintained against administrator, as such, 136.
Claimant in replevin need not be absolute owner, 236. Will not lie on ground of illegality of consideration, where defendant has taken possession of property ac cording to terms of mortgage, 435.
Principle of, embraces not only what was actually deci ded, but every other matter which the parties might have litigated in the case, 78.
Where, in an action to cancel a note for fraud, judgment was given in favor of its validity, defendant can not, in subsequent action on note, set up that it was executed through mistake, 255.
If all the parties in being, having an interest in the sub- ject-matter of the bill, are made parties, a decree con- struing a will, will be binding upon after born children who may be entitled as remaindermen; and powers exercised under such construction by the executor, in good faith, will be upheld, 478.
SET-OFF AND COUNTERCLAIM.
[See PLEADING AND PRACTICE.] SHERIFF.
[See EXECUTIONS; OFFICES AND OFFICERS.] SLANDER AND LIBEL.
Privileged communication; notice; burden of proof, 114. In criminal prosecution for libel, the truth of the matter charged as libelous not a defense unless it was pub- lished for justifiable ends, 139.
Rule otherwise in civil actions. Ibid.
In action for slander, for charging plaintiff with having burned his property to defraud insurers, proof of actual insurance not material, 176.
Repetition of charges; opinion of officer; evidence of public rumors, 176.
No justification to action for libel in publishing of plain- tiff that he was a "felon cditor,' that he had been con- victed of a felony; distinction between the use of the words "convicted felon" and "felon editor," 181.
In libel, where the defendant pleads the general issue and does not justify, evidence tending to prove the truth of the charge or of circumstances which, in the popular mind, tend to cast suspicion upon the plain- tiff is inadmissible: exception to this rule. Storey v. Early, 205.
Distinction between publication of slanderous matter in a newspaper as a matter of news, and upon the personal truthfulness and responsibility of the de- fendant. Ibid.
Publication of ex parte proceedings before a magistrate, privileged. Usif v. Hales, 245.
Words "swindler and rogue" not actionable per se, 293. Indictment for libel which sets out libel preceded by words "as follows," good, 295.
SPECIFIC PERFORMANCE.
Of contract for sale of land; party asking for must show that he is not in default himself, 1. Dependant contracts; when enforced and when not en- forcible. Burton v. Shotwell, 31.
Action for specific performance against heirs of vendor and grantee not action for relief on the ground of fraud within Ohio Code, 39.
May be granted with abatement, where too large a quantity of land was included in contract though by mistake, 114.
Proper remedy when party has failed to convey the num- ber of acres required by the contract, 375. SPRING GUNS. [See ASSAULT.]
A promise by A to B to pay C a debt which B owes C not within the, 136.
agreement not signed by party to be charged, 214.
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